Georgia executed murderer Brandon Jones shortly after midnight, using pentobarbital. As usual with single-drug barbiturate executions, there were no complications. AP reports:
Is that a genuine problem? No, as Judge Marcus explains for the majority (emphasis added):
Jones was initially still with his eyes closed and then swallowed a couple of times and moved his head slightly. He opened his eyes at 12:36 a.m. (5:36 GMT) and turned his head to his left, appearing to look toward a clock hanging on the wall. Then he closed his eyes again and took a few deep breaths before falling still.Few of us are going to die that peacefully or painlessly. So why was there a bitter 6-5 division in the Eleventh Circuit Court of Appeals? Because the State of Georgia will not disclose the source of its pentobarbital.
Is that a genuine problem? No, as Judge Marcus explains for the majority (emphasis added):
Finally, we repeat what the panel said about the equities: we ought to be particularly reluctant to interfere in Georgia's enforcement of its lethal injection protocol since its current protocol -- using compounded pentobarbital provided by an undisclosed source -- has actually been used at least seven times in the last year, without incident. See Terrell v. Bryson, 807 F.3d 1276, 1279 (11th Cir. 2015) (Marcus, J., concurring). Moreover, when Georgia suspected there was a problem with its two batches of "cloudy" drugs last spring, it postponed the scheduled executions until it could look into the matter. Id. There has been no claim that Georgia has encountered cloudy drugs since, nor that it has ever used contaminated drugs in an execution. Georgia also complied with the Open Records Act in providing Jones with its analysis, the drug logs, and its testing results.Determining the chemical composition of the liquid in a bottle is not difficult. We have instruments that can quickly tell us with great precision what substances in what concentrations are in the solution. (We had them when I worked in a lab, 1977-82, and the technology was already well established then.) A test of the particular sample is a far better guarantee of the purity and potency of the drug than any information about its source can ever be.
If we know that the solution is, say, 400 mg/ml pentobarbital sodium with no measurable impurities, what else do we need to know? With drugs for medical treatment, we need to know that the solution is sterile to preclude it being a source of postoperative infection, but for lethal injection that is obviously inapplicable. There is, quite simply, no additional information of legitimate value to be obtained by knowing the source.
What do the dissenting judges have to say about the fact that the drug has been tested and the results turned over? Not a single word. They simply ignore this critical fact. Mustn't let stubborn, inconvenient facts get in the way of a good rant.
The U.S. Supreme Court denied a stay without dissent.
So if the state hands over information about the composition of the drug that is more reliable than disclosure of the source could be, why do the opponents still want to know the source? So they can harass the source into no longer providing the drug, thus exercising a "heckler's veto" over a law enacted through the democratic process with the support of the overwhelming majority of the people. The judiciary should not assist in such antidemocratic tactics.
The dissenting opinion is an embarrassment. The author and the other four judges who joined it have no business being on the bench. They are either too stupid to understand how the world works or deliberately wrote a lawless opinion. They tried to use their office to inflict unimaginable pain on the victim's family and thwart justice.
This is likely the worst federal appellate opinion in recent memory--its disingenuousness is studied, and its lawlessness is manifest. Yet we will see zero snark from places like Above the Law, no shrieks from law profs and certainly no widespread criticism from the bar.
The polity has to tolerate honest mistakes from our robed aristocracy. The polity has no obligation to follow lawlessness such as this. The only possible argument is that anarchy would result---but lawlessness on the bench creates anarchy.
And where is the bench? Collegiality is important, but not so important that lawlessness ought to be tolerated.